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Recent Constitutional Reforms in Kazakhstan: A Move towards Democratic Transition?

In: Review of Central and East European Law
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This article aims at examining the major principles and provisions of the constitutional structure of Kazakhstan in the context of the amendments introduced to the Constitution of Kazakhstan on 10 March 2017. In doing so, it provides an analysis of the fundamentals of Kazakhstan’s constitutional system as well as major constitutional provisions underlying the status of the capital, the status of individuals, the Kazakh-style strong presidency and weak parliament. The article provides background to Kazakhstan’s constitutional development and elections. It pays particular attention to the relationship between the President, the Parliament and the Government, but also expounds the influence of the President on the Constitutional Council and judicial bodies. Finally, it summarizes and demonstrates major features and problems of Kazakhstan’s constitutional system in order to provide an answer as to whether the recent constitutional reforms constitute a move towards the country’s democratic transition.

Abstract

This article aims at examining the major principles and provisions of the constitutional structure of Kazakhstan in the context of the amendments introduced to the Constitution of Kazakhstan on 10 March 2017. In doing so, it provides an analysis of the fundamentals of Kazakhstan’s constitutional system as well as major constitutional provisions underlying the status of the capital, the status of individuals, the Kazakh-style strong presidency and weak parliament. The article provides background to Kazakhstan’s constitutional development and elections. It pays particular attention to the relationship between the President, the Parliament and the Government, but also expounds the influence of the President on the Constitutional Council and judicial bodies. Finally, it summarizes and demonstrates major features and problems of Kazakhstan’s constitutional system in order to provide an answer as to whether the recent constitutional reforms constitute a move towards the country’s democratic transition.

1 Introduction

Speaking at a ceremony dedicated to the 25th anniversary of Kazakhstan’s independence in December 2016, Kazakh President Nursultan Nazarbayev proposed to amend the Constitution of the Republic of Kazakhstan, which had been adopted by all-nation referendum on 30 August 1995,1 and ordered to create a special commission with the purpose of working out proposals on “redistribution of powers between the President, the Parliament and the Government” and of transferring some presidential powers to the Government and the Parliament.2 The commission was created early the next year and already on 25 January 2017, President Nazarbayev unveiled a package of draft constitutional changes that was submitted for a one-month nationwide discussion.3 The elderly leader said this would deliver “democratization of the political system as a whole”.4

In fact, the words of the Kazakh President are of particular importance, as Kazakhstan is consistently classified as “not free”5 and “authoritarian”.6 In difference to the first Constitution of independent Kazakhstan of 28 January 1993,7 which gave strong competences to legislative and judicial bodies, enabling them to effectively balance and control the executive branch headed by the President,8 the current Constitution granted extensive powers to the President, putting him in a superior position within Kazakhstan’s political system. In particular, in his capacity of guarantor of the inviolability of the Constitution,9 who is entitled to play an (almost) exclusive role in the process of initiating any amendments or additions to the Constitution, the President may choose whether he pursues the constitutional changes through the Parliament,10 which would have to approve them by a three-fourths majority in both chambers,11 or through conducting a nationwide referendum, which can be initiated by the President along with the Parliament or the Government, but endorsed only by the President.12

In Kazakhstan’s constitutional history there were two referendums; the first, held on 29 April 1995, extended the authority of the President for five years and practically allowed him to start the process of fundamentally changing the country’s political system, while the second, organized on 30 August 1995, approved the new Constitution. Thereafter, however, no referendums were conducted in Kazakhstan; in particular, also not in the case of three previous constitutional amendments introduced on 7 October 1998,13 21 May 200714 and 2 February 2011,15 which were approved by the Parliament.

Based on his powers and following the established practice, President Nazarbayev decided to make constitutional amendments through the Parliament. Accordingly, on 3 March 2017, the President submitted to the Parliament a draft law introducing amendments to the Constitution. Even though more than 6,000 proposals were made on how to change the Constitution during the one-month nationwide discussion,16 the submitted draft had only a few (though substantial) modifications from the initial package.17 Already on 6 March, the Parliament adopted the draft envisaging 26 amendments to 19 articles of the Constitution and submitted the draft to the President for signing into law. On the same day, Nazarbayev sent the draft to the Constitutional Council18 to check its compliance with the fundamentals of Kazakhstan’s constitutional system. Receiving a positive resolution of the Constitutional Council,19 on 10 March, the President signed the draft into law, which immediately came into effect.20

This article aims at examining the major principles and provisions of the constitutional structure of Kazakhstan in the context of recent constitutional amendments introduced to the Constitution of Kazakhstan and at providing an answer as to whether those amendments constitute a move towards the country’s democratic transition. For these purposes, the article is organized as follows. Section 2 provides an analysis of the fundamentals of Kazakhstan’s constitutional system and argues that the major goal of the recent constitutional amendments was to strengthen the existing constitutional values and tenets aiming primarily at safeguarding political stability and promoting consolidation of the country. Section 3 explains the role of Kazakhstan’s capital in the process of the country’s consolidation as well as recent amendments with respect to its status. Section 4 addresses the status of individuals in Kazakhstan and illustrates additional limitations set forth recently. Sections 5 and 6 explain milestones in the development of both presidentialism and parliamentarism in Kazakhstan. In particular, they deal with the relationship between the President, the Parliament and the Government, but also expound the influence of the President on the Constitutional Council and judicial bodies. Finally, the article draws some conclusions summarizing and demonstrating major features and problems of Kazakhstan’s constitutional system.

2 Fundamentals of Kazakhstan’s Constitutional System

The current Constitution solemnly proclaims Kazakhstan to be a “democratic, secular, rule of law and social state, whose highest values are an individual, his life, rights and freedoms”.21 Yet the real constitutional values are disguised under the term “fundamental principles of the state’s activity” and worded as follows: (a) public concord; (b) political stability; (c) economic development for the benefit of the entire nation; (d) Kazakhstani patriotism; and only then (e) “resolution of important issues of the state affairs by democratic methods”.22 Accordingly, the Constitution fully reflects Nazarbayev’s vision of Kazakhstan’s development towards democracy: “economy first, then politics” and “democracy is not the beginning of [Kazakhstan’s] path, it is the end”.23

With the purpose of putting the “fundamental principles of the state’s activity” in effect, exactly in the order of priority indicated above, the Constitution encapsulates the following major tenets of Kazakhstan’s constitutional structure: (a) a presidential form of government;24 and (b) a centralized unitary state.25 From the very beginning, the Constitution stipulated that these major tenets, along with the Republic’s territorial integrity, constitute Kazakhstan’s eternity clause and may never be changed.26 Accordingly, a strong presidency27 and unitary system28 have always been regarded as important for the country’s state-building process as its territorial integrity.

The major aim of this combination of a strong presidency and a centralized government, as well as a secular state, is obviously to ensure public harmony and political steadiness in a multiethnic and multiconfessional country that gradually became a part of the Russian empire in the 18th and 19th centuries and subsequently the ussr and had no tradition of democracy. Soviet policies (such as denomadization of Kazakhs, industrialization, large-scale deportations of “untrustworthy” ethnic groups during World War ii, in particular ethnic Germans, and the agricultural “Virgin Lands” program) enabled non-Kazakhs to outnumber natives by the 1960s. Yet as significant numbers of ethnic Russians and Russian-speaking (German, Ukrainian, Polish, etc.) minorities departed the country in large numbers from the early 1990s and a national program has repatriated about a million ethnic Kazakhs back to Kazakhstan, the Kazakh proportion represents now more than three-fifths, while the Russian community one-fifth of the country’s total population.29

Despite significant changes in the demographic makeup of Kazakhstan, ethnic Russians still constitute the majority of inhabitants in a number of northern regions of Kazakhstan; it is also noteworthy that 74 percent of population can speak Kazakh while 94 percent has a command of the Russian language.30 This explains the language policy of Kazakhstan, according to which Kazakh is considered the state language but Russian is also given official status and allowed to be used on equal grounds in state institutions31 fully in line with “the fundamental principles of the state’s activity”.

The recent constitutional amendments significantly strengthened Kazakhstan’s constitutional values, making “the fundamental principles of the state’s activity as established by the Founder of independent Kazakhstan [i.e. President Nazarbayev]” to be a part of the Constitution’s eternity clause.32 As such, those values, the same as other “eternity provisions”, are now of particular importance because another constitutional modification stipulates that any future constitutional amendments may be considered by a referendum or the Parliament only if the Constitutional Council concludes that those amendments comply with the requirements of the eternity clause.33

Also, the Constitution’s eternity clause was expanded to include the international independence of the Republic. What initially seemed axiomatic acquired a different meaning in the view of Kazakhstan’s membership in the Eurasian Economic Union (eaeu).34 In particular, the eaeu’s executive body, the Eurasian Economic Commission, may adopt legally binding decisions that are directly applicable in all Member States.35 In fact, Kazakhstan’s legislation allows participation of the Republic in “international organizations that feature the transfer of a part of the sovereign authorities of the member states to those international organizations”.36 Moreover, the Supreme Court of Kazakhstan ruled that Kazakhstan may be a member of even those international organizations whose organs are able to adopt mandatory decisions by a majority of votes37 while the Constitutional Council resolved that the Commission’s decisions have priority over the laws of the Republic.38 Even though the Constitutional Council also resolved that the decisions of the Commission (like organs of any other international organization) may not contradict the Constitution and do not have priority over Kazakhstan’s laws in the event that they infringe upon the constitutional rights and freedoms of individuals,39 the Constitution now contains a provision eternally guaranteeing the inviolability of Kazakhstan’s independence.

Last but not the least, after the latest amendments, the Constitution’s eternity clause now embraces also the inviolability of the status of President Nazarbayev as “the Founder of independent Kazakhstan, the First President and the Leader of Nation”.40 Accordingly, it can be argued that the major aim of the recent constitutional reform was not “redistributing powers between the President, the Parliament and the Government”, but rather introducing changes to the fundamentals of Kazakhstan’s constitutional system with the purposes of strengthening its values and tenets and perpetuating the role of the country’s first President. The latter occurs not least because President Nazarbayev started fundamental reforms that allowed the country to make significant progress toward developing a market economy, to maintain stability, and to strengthen the links between its various parts, in particular through establishing its new capital.

3 Status of the Capital

Kazakhstan’s northern regions are home to (in the 1990s significantly) more ethnic Russians than Kazakhs. This situation gave rise to territorial claims by Russian nationalists, in particular Aleksandr Solzhenitsyn, who in his manifesto on how to rebuild Russia called for the creation of a new Slavic state bringing together Russia, Ukraine, Belarus, and the ethnic Russian parts of Kazakhstan.41 President Nazarbayev confessed that Solzhenitsyn’s program deeply distressed and alarmed him42 and prompted him to take resolute action.

On 6 July 1994, Kazakhstan’s Parliament adopted a resolution “approving the proposal of President Nazarbayev to transfer the country’s capital” from Almaty, in southeastern Kazakhstan, to Akmola (now Astana), then a small provincial city in the north.43 This proposal was considered by the overwhelming majority of parliamentarians as feasible only in the very distant future (in at least 40–50 years).44 However, the Parliament’s sluggishness with respect to the capital’s relocation (and accelerated, large-scale privatization needed in particular to cover costs of such relocation) was unacceptable for Nazarbayev and ultimately triggered the dissolution of the Parliament in March 1995 and the adoption of the new Constitution.45

In comparison to the first Constitution, which explicitly stipulated that the capital of Kazakhstan is the city of Almaty,46 the original text of the current Constitution merely provided that “the location and status of the capital shall be determined by law”.47 In a time of fundamental political transformation and exceptional economic crisis, the capital’s relocation was not only unpopular among the people of Kazakhstan, it was not even a subject of wide discussion and in the latter case would certainly have given rise to a considerable opposition. Yet voting for the new Constitution and thus for the policy of stability and public concord, which public associated with the personality of the President, the overwhelming majority of the Kazakh electorate apparently overlooked the above legal difference with respect to the status of the capital. Accordingly, without properly realizing it, Kazakh voters laid a constitutional foundation for the transfer of the capital.

Almost immediately after the adoption of the new Constitution, President Nazarbayev, who from March 1995 until the elections of the new Parliament in December 1995 exercised also legislative power, adopted a decree having the force of law creating a special commission on redeployment of central state bodies and saying that Almaty remains the capital only until the relocation of the Parliament and the Government to Akmola.48 Almaty’s vulnerability to earthquakes and the new capital’s better transportation links were speculated as reasons for the move; however, the major reason of the move was obviously to allow for more government influence in the Russian-dominated north and to underpin the consolidation of the country. In October 1997, the President announced Akmola as the capital of Kazakhstan starting from 10 December 1997;49 and in May 1998, he renamed Akmola to Astana.50 After the constitutional amendments of 21 May 2007, the Constitution provided explicitly that “the capital of Kazakhstan shall be the city of Astana”.51

The recent constitutional reforms also dealt with the issue of the capital’s status by adding a provision saying that: “a special legal regime may be established within the territory of Astana in accordance with constitutional law”.52 This provision addresses one of the most important of Kazakhstan’s legal developments of the current time. On 21 May 2015, President Nazarbayev issued a decree establishing the Astana International Financial Centre (aifc),53 followed by a Constitutional Law on aifc of 7 December 2015.54 The aifc is set to officially launch on 1 January 2018 and is designed to be a financial hub offering tax incentives and to operate under a special legal regime with the purpose of attracting foreign investment. It will have its own self-governing regulator and independent common-law judicial system and will use English as its working language. This is intended to reassure investors that their rights will be secured and that they will not have to resolve disputes in Kazakhstan’s mainstream judicial system.

The establishment of the aifc clearly demonstrates the lack of trust in domestic courts, which are plagued by corruption55 and are marked by significant problems in judicial independence.56 Evidently, struggling against corruption and ensuring judicial independence are only possible in case of strong commitment to rule of law, separation of power (in reality and not only on paper), and consequently democratization. Yet in prioritizing economic modernization over democratization (fully in line with Kazakhstan’s constitutional values), the Constitution now allows transplanting foreign legal institutions for the sake of attracting foreign investment, ensuring economic growth and legitimizing the existing political regime. At the same time, however, democratic reforms are postponed indefinitely, which is demonstrated by examining the constitutional status of individuals in Kazakhstan.

4 Status of Individuals

Unlike the Constitution of 1993, the current fundamental law does not include the “guarantee of the essential content” of constitutional rights and freedoms.57 At the same time, however, it incorporates two significant reservation rules: 1) “obligation to desist” (“Exercise of a citizen’s human rights and freedoms must not violate rights and freedoms of other persons or infringe on the constitutional system and public morals”);58 and 2) “justification to intervene” (“Rights and freedoms of an individual and citizen may be limited… to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, and health and morality of the population”).59

Another important limitation, which until March 2017 stipulated that “any actions capable of upsetting interethnic concord shall be deemed unconstitutional”, is now expanded to include also “interconfessional concord”.60 Though “interethnic and interconfessional concord” is without a doubt essential in a multiethnic state like Kazakhstan, the term itself is of a very vague and indistinct nature and potentially permits the government to take action against its critics in a wide-ranging variety of cases, which obviously contradicts the high appreciation of human rights and freedoms in the Preamble and the first Article of the Constitution.

In addition, a significant disadvantage compared to the Constitution of 1993 was the replacement of the Constitutional Court by the Constitutional Council61 and thus the elimination of the possibility of the submission of constitutional complaints by individuals. Even though in September 2002, the post of ombudsman was instituted in Kazakhstan and is now set forth by the Constitution,62 the ombudsman is not even a partial substitute for the above loss, as this official may not consider complaints against actions and decisions of the President, the Parliament and its deputies, the Government, the Constitutional Council, the Prosecutor General, the Central Election Commission, and the courts of Kazakhstan.63

Of particular note is also that until recently the Constitution provided that citizens of Kazakhstan may not be deprived of citizenship.64 However, this provision is now modified by an addition saying that deprivation of citizenship is permissible upon court decision for commission of terrorist crimes and causation of grievous harm to Kazakhstan’s vital interests.65 Even though there is a general threat from terrorism, Kazakhstan belongs to a group of countries with the lowest impact of terrorism.66 As to the latter part of the new constitutional rule, the last-mentioned term could only be found in the previous Kazakhstan Military Doctrine, which in particular contained a provision worded as “sovereignty, territorial integrity and other vital interests of the Republic of Kazakhstan”.67 Yet causation of grievous harm to Kazakhstan’s vital interests (that will, in the author’s opinion, most likely include, along with sovereignty and territorial integrity, also all other major constitutional tenets such as “the fundamental principles of the state’s activity” and the status of President Nazarbayev as “the Founder of independent Kazakhstan, the First President and the Leader of Nation”) will soon become also a part of the Criminal Code.68 Accordingly, deprivation of citizenship will be one of the criminal punishments and a convenient tool against political dissidents, allowing them to be excluded from the political process.

In addition, it is noteworthy that the initial set of draft amendments introduced to the nationwide discussion included a proposal changing the term “citizens of the Republic of Kazakhstan” to “everyone” in another constitutional provision related to property, saying that: “citizens of the Republic of Kazakhstan may privately own any legally acquired property”.69 This proposal seems to be fully logical, considering in particular that after obtaining independence Kazakhstan was able to attract about 260 billion usd of foreign direct investment.70 However, the proposal met with fierce opposition from the public in particular because people in Kazakhstan have a centuries-long fear of Chinese domination, which was significantly reinforced by the legacy of Soviet propaganda. The negative view of China had already resulted in spontaneous demonstrations against Chinese demographic expansion and possibility of lease of Kazakh land to China.71 Realizing that the proposal may easily cause similar civil unrest, the President decided to remove it from the set of amendments submitted to consideration of the Parliament.72

5 Dominant President

5.1 Term of Office, Elections and Requirements to Candidates

Already in February 1990, Nazarbayev, who became the head of the Kazakh Communist Party in June 1989, was elected as a Chairperson of the Supreme Soviet (i.e., the nominal head of state in the Soviet hierarchy) and, following the example set by Gorbachev in Moscow, converted this position to a genuine presidency initially confirmed by parliamentary election on 24 April 1990 and subsequently by popular election on 1 December 1991. Set to expire in 1996, Nazarbayev’s term was, however, extended in April 1995 for five years in a referendum, which also cleared the way for the adoption of the new Constitution.73

Originally, the current Constitution provided that the President was to be elected for a five-year term and that a person eligible for the office of the President may not be older than 65. However, from the very beginning it was clear that these requirements would not suit the long-term interests of Nazarbayev, who, using his presidential powers, significantly strengthened his hold on Kazakhstan’s political structures. The course of events was facilitated by the Russian financial crisis of August 1998, which severely affected Kazakhstan, with the peak of the crisis predicted for the year 1999. On 7 October 1998, the Parliament, at that time fully controlled by the supporters of Nazarbayev, adopted the first set of constitutional amendments, which inter alia increased the term of the presidential office to seven years and eliminated the upper age limit.74 On the next day, the Mazhilis (lower house of Parliament) announced the next presidential election to be held in three months, moving it up by almost a year, enabling Nazarbayev to avoid the uncertainty of the upcoming critical year and giving opposition candidates little time to prepare. In the election of 10 January 1999, Nazarbayev was reelected to a seven-year term, receiving the votes of almost 80 percent of the electorate.75

The Constitution also provides that the same person may not be elected more than two times in a row.76 The obvious discrepancy as to the number of terms provided by the Constitution was resolved by the Constitutional Council on 20 June 2000, in a resolution stating that “taking into account… that the adoption of the Constitution of 1995 profoundly changed the constitutional system… the first term of office of the President… must be counted from the moment of his official entrance upon the duties, i.e. 20 January 1999”.77 This allowed Nazarbayev to be reelected for another seven-year term polling 91 percent of the vote on 4 December 2005,78 the only time so far, that a constitutional rule stipulating that regular presidential elections must be held on the first Sunday of December was applied.79 The final point at the issue of the number of terms was put to rest by the constitutional amendments introduced on 21 May 2007, which provide that this limitation does not apply to the First President.80 At the same time, however, the term of presidential office was decreased back to five years.81

Furthermore, in December 2010, within a few days a public group gathered more than five million signatures, i.e., more than a half of eligible voters, which is in Kazakhstan’s realties certainly not possible without approval or even command from the very top, and initiated a referendum on prolonging Nazarbayev’s term of office until 2020. Already in January 2011, the Parliament passed a constitutional amendment in favor of extending the President’s rule. However, by that time the President appealingly changed his initial plan and vetoed the proposed amendment. Even though the Parliament was very quick to unanimously override the President’s veto (for the first and the last time so far), the President referred the amendments to the Constitutional Council, which declared the proposed referendum unlawful. Saying that he “cannot set the wrong precedent for future politicians”,82 the President, however, initiated another amendment to the Constitution stipulating that the President may set preterm (or early) presidential elections.83 After the Parliament approved the President’s new authority, Nazarbayev immediately tested it by calling a presidential election for 3 April 2011, well ahead of when his term was to expire, and winning the election with an even more persuasive result of over 95 percent of the votes.84

As the experiment went well, the next presidential election took place on 26 April 2015 with the incumbent President achieving an astonishing outcome of 97,5 percent of the votes.85 The election was also conducted significantly earlier than formally scheduled, but with a firmer purpose of obtaining “a clear mandate to lead the country through potentially troubled times”.86 In fact, experiencing an economic slowdown because of lower oil prices and the international sanctions against its top trading partner Russia, Kazakhstan was on the eve of massive devaluation of its national currency that occurred in few months after the election. Undoubtedly, it would have been much more difficult to attain such a splendid result, had the election taken place in December 2015, as it would have been scheduled by the Constitution for a regular election.

As to future elections, it is noteworthy that the recent constitutional amendments have introduced significant changes to requirements of candidates for presidential office. Until March 2017, the Constitution stipulated that those Kazakhstan’s citizens are eligible for the office of the President who are citizens by birth, not younger than forty, have a perfect command of the state (i.e. Kazakh) language, have lived in Kazakhstan for the last fifteen years, and have a higher education.87

Now these prerequisites were expanded to include a provision saying that additional requirements of candidates for presidential office may be established by a special legislative act,88 the Constitutional Law “On Elections in the Republic of Kazakhstan”.89 These additional requirements are still being discussed but will most likely include “absence of diseases preventing the performance of duties” and at least five years experience in state service.90 Undoubtedly, the latter requirement will make sure that representatives of exogenous opposition will be effectively excluded from being nominated as candidates.

5.2 Status of the President

Kazakhstan’s presidency may without any exaggeration be described as a super-presidential one, a fact that can easily be seen by looking at the Kazakh President’s diverse competences. Along with classical authorities such as: (a) the head of state representing Kazakhstan both within the country and in international relations;91 and (b) the highest official determining the primary course of Kazakhstan’s domestic and foreign policy;92 the President is also: (c) the guarantor of “rights and freedoms of individuals” and “the unity of the people and the state power”, who warrants responsibility of the state institutions before the people;93 (e) the arbiter ensuring concerted functioning of all branches of state power,94 who in particular may for this purpose dissolve the Parliament and/or release the Government from office;95 and (d) the guarantor of the inviolability of the constitution.96 In addition, the President is guaranteed by the Constitution full immunity from prosecution for all potential criminal acts, except high treason.97

With respect to the President’s official capacities, the latest constitutional amendments added a provision explicitly saying that the President may direct appeals to the Constitutional Council on considering the compatibility with the Constitution of any legislative or other regulatory acts in the interests of protecting human rights and freedoms, ensuring national security, sovereignty and territorial integrity of the state.98

Of particular note is that in July 2000, on the occasion of the President’s 60th birthday, a Constitutional Law was adopted that bestowed on Nazarbayev the status of “the First President”, assuring his full inviolability and providing him significant privileges and authority even after he retires from the presidential office. In particular, major directions of domestic and foreign policy will have to be discussed with and approved by Nazarbayev; moreover, he will remain the Chairperson of the Assembly of Peoples of Kazakhstan99 and will become a member of the Constitutional Council100 and of the Security Council.101 Furthermore, in May 2010, the Parliament supplemented the Constitutional Law by granting the title of the Elbasy (the Leader of the Nation) to the incumbent President and providing additional exemptions to him.102

In particular, the private property of both the President and his family members, their premises, banking accounts, means of transportation and communication, archives and documents will be immune,103 while infringement on the honor and dignity of the President, including damage of his images and distortion of his biography, will constitute a criminal offence.104 Thus, on the eve of his 70th anniversary Nazarbayev acquired the title of the Leader of Nation, a position that is clearly indicative of the high degree of centralization of political power in the hands of the President.

5.3 President and the Government

Although the Constitution does not formally define the President as the executive power, it creates a de facto dual executive branch that includes, along with the President, the Government as a separate organ “implementing the executive power of rk”.105 In this tandem, the President is the dominant figure and fully controls the executive branch. The Government “in its entire activity” is responsible to the President106 and thus has a purely administrative character. The President may, at any time, and at his own discretion, remove the Prime Minister (which would also denote the termination of the powers of the entire Government) or any other member of Government from office.107 Further, the Constitution defines the Government as a “collegial organ”, which means that those members who do not agree with the policy pursued by the Government, as actually determined by the President, must resign or face removal from office.108 It is also very telling that the members of the Government must take an oath not only to the people but also to the President.109

It is explicitly stated that “the Government shall be formed by the President according to the procedure stipulated by this Constitution”.110 Before March 2017, the procedure encompassed the following five stages: (1) the President had to consult with the fractions of the political parties represented in the Mazhilis on a candidate for the office of the Prime Minister; (2) the President introduced the candidate for Prime Minister to the Mazhilis in order to obtain its consent; (3) with the consent of the Mazhilis, the President appointed a Prime Minister; (4) the President appointed at his own discretion foreign, defense, interior and justice ministers; and (5) at the proposal of the Prime Minister (due within ten days after his appointment), the President determined the structure of the Government and appointed its other members. The recent constitutional amendments changed the last two stages in the above procedure. The President may now appoint at his own discretion foreign, defense and interior (but not justice) ministers. In addition, the newly appointed Prime Minister must now consult with the Mazhilis before submitting his proposal to the President on candidates to be appointed as members of the Government.111

After the recent changes, the President may not terminate or suspend the effect of regulatory acts of the Government and the Prime Minister. However, the President may still terminate or suspend regulatory acts of local executive bodies,112 which are largely adopted with the purpose of implementing the acts of the Government and the Prime Minister. Also, in difference to the previous wording saying that “the President shall preside at the meetings of the Government on especially important issues”, the current text adds that this competence is exercised only “if necessary”.113 Furthermore, if previously, the President was entitled to approve state programs and “a unified system of labor payment for all bodies financed by the state budget” at the proposal of the Prime Minister, now those competences are exercised by the Government in concurrence with the President.114

5.4 President and the Constitutional Council

The Constitutional Council, consisting of a chairperson and six other members and taking decisions by a majority of votes, performs important functions such as: (1) deciding the validity of presidential and parliamentary elections as well as nationwide referendums; (2) considering whether laws adopted by Parliament comply with the Constitution before they are signed by the President; (3) considering whether international treaties of the Republic comply with the Constitution before they are ratified; and (4) providing official interpretation of constitutional rules. Also, the Council must provide its conclusions as to whether established constitutional procedures were observed in cases where the President is released from office prematurely due to continued incapacity to perform his duties or discharged due to a charge of high treason.115

Until March 2017, the Council’s resolutions could be objected to, in whole or in part, by the President and the President’s objections could be overruled by a two-thirds vote by the members of the Constitutional Council. After the recent constitutional amendments, the President may not put a veto on the Council’s resolutions, which certainly strengthens the position of the Council, especially in the view that the Council’s resolutions have the same legal force as the respective constitutional provisions that served as basis for their adoption.116 Accordingly, no regulatory acts in Kazakhstan may contradict the Council’s resolutions.117

Yet the President may still significantly influence the work of the Constitutional Council. He plays a major role in the formation of the Council, as he is entitled to appoint its chairperson and two members. However, of particular note is that the Constitutional Council may start operating only when it is petitioned by: (a) the President; (b) the Chairperson of the Senate; (c) the Chairperson of the Mazhilis; (d) a group of deputies of not less than one-fifth of the total number of parliamentarians; or (e) the Prime Minister (Article 72).118 In Kazakhstan’s political realities, this practically means that the Constitutional Council may be appealed either by the President personally or with his explicit or implicit consent.

5.5 President and the Judicial Power

The President exerts also substantial influence on Kazakhstan’s judicial power. He nominates judges of the Supreme Court (who are then elected by the Senate) and appoints judges of all local (both at district and regional levels) and specialized courts at the recommendation of the Highest Judicial Council.119 Although judges may serve until the age of retirement (which is 65 years and may be prolonged in exceptional cases for five years),120 their powers may be terminated for a variety of reasons, which seriously undermines their judicial independence and thus moves them to decide fully in line with the official state doctrine as determined by the President.121 Moreover, the President may also reorganize and abolish local courts at the proposal of the chairperson of the Supreme Court formulated in coordination with the Highest Judicial Council.122

Yet of particular note is that judicial decisions in Kazakhstan are explicitly not considered a source of law123 and courts in Kazakhstan are generally not law-making but merely law-applying bodies.124 Given the President’s enormous influence over the legislative process and his ability to adopt decrees, one of the major sources of law in Kazakhstan, the President is able to arbitrarily manipulate judicial decision-making. In addition, the President appoints the Procurator General with the consent of the Senate and may any time release him from office. Even though the Procurator’s Office is not a part of the judicial power, it is closely connected to it. In particular, it exercises “the highest supervision over the exact and uniform application of laws and other regulatory legal acts in Kazakhstan” (in particular presidential decrees), represents the interests of the state in court and conducts criminal prosecutions. As a unified and highly centralized system that is accountable only to the President, the Procurator’s Office is one of important tools in the President’s hands enabling him to keep a tight rein on the entire country, and the judicial power in particular.

6 Weak Parliament

6.1 Structure and Elections of the Parliament

Unlike the unicameral legislature under the Constitution of 1993, the current Parliament consists of two chambers: the Senate and the Mazhilis. The Senate is composed of two deputies from each of the 14 administrative regions (oblasts) as well as from the cities of Almaty and Astana, who are elected at a joint session of the local representative bodies. In addition, the President may choose 15 senators “with regard to the necessity of maintaining representation of ethnic-cultural and other significant social interests in the Senate”.125 In contrast to the Senate, the configuration of the Mazhilis was subject to frequent changes.

Originally, the Mazhilis was composed of 67 deputies elected in one-mandate constituencies during the first elections conducted on 9 December 1995. The first set of constitutional amendments of 7 October 1998 slightly modified the composition of the Mazhilis by adding 10 deputies to be elected on the basis of the “party lists” of those political parties that received not less than 7 percent of votes.126 This change triggered the merger of several pro-presidential parties and movements into a new party, Otan (“Fatherland” in Kazakh), which came out as the biggest party (obtaining 24 of 77 seats) in the second elections to the Mazhilis on 10 and 24 October 1999.127 At that time, almost half of the deputies did not formally represent any political parties but were overwhelmingly associated with the government and big business and mostly supported Otan.128 The third election to the lower chamber, held on 19 September 2004, resulted in Otan winning 42 seats and almost all other seats distributed among three other (Asar, Civil and Agrarian) parties, which were broadly, if not explicitly supportive of the President’s aims and policy choices.129 Yet in 2006, the President urged all parties supportive of his policies to unite with Otan saying that “the country should have fewer but stronger parties that would efficiently defend the interests of the population”.130 As a result, the Asar, Civil and Agrarian Parties merged with Otan and on 22 December 2006, at the enlarged Otan’s party congress, its delegates voted to rename the party to Nur Otan (“Nur”, as in the three first letters of the President’s first name, means “Ray of Light” in Kazakh).131

The second set of constitutional amendments of 21 May 2007 completely altered the structure of the Mazhilis, both with respect to the number of deputies and the method of their election. Currently, the lower chamber consists of 107 deputies: 98 of them are now elected on the basis of the “party lists” and nine are elected by the Assembly of the People of Kazakhstan.132 The Assembly, which previously played only a consultative role, has thus acquired permanent political significance. Also, the constitutional amendments removed a rule requiring the President “to suspend activity in any political party for the period he exercises his powers”.133 Another important amendment was that a provision prohibiting imperative mandates for parliamentarians was now repealed from the Constitution and replaced by a rule specifying that deputies lose their mandate if they resign or are ejected from the party in whose name they were elected.134

Soon after the Constitution was amended, the President dissolved the Mazhilis and became the chairman of the Nur Otan party. In the extraordinary parliamentary elections of 18 August 2007, Nur Otan received all seats in the Mazhilis, as none of other political parties was able to overcome the 7 percent party barrier.135 Even though the single-party Parliament became immediately subject to international criticism; the President declared that this Parliament was a “wonderful opportunity to adopt all the laws needed to speed up our country’s economic and political modernization”.136

Yet the single-party Parliament was replaced only after it fulfilled its major mission, i.e. proclaiming Nazarbayev as the Leader of Nation, cementing his supremacy over Kazakhstan’s political system and virtually allowing him to rule for life. The current three-party Parliament was introduced during the fifth elections to the Mazhilis that took place on 15 January 2012137 and repeated in the last elections on 20 January 2016.138 Along with the ruling party, Nur Otan, consistently obtaining the overwhelming majority of parliamentary mandates, it includes two other parties, the Democratic Party of Kazakhstan “Ak Zhol” and the Communist People’s Party of Kazakhstan, each barely surpassing the party barrier by getting with almost mathematical exactness 7 percent of votes, which clearly reveals the managed character of Kazakh democracy.139

6.2 Parliament and the President

Reflecting the experience of the first half of 1990s, when the President, in a deep political crisis resulting from the Parliament’s dissolution, combined both the executive and legislative power within his office on a temporary basis, the Constitution until recently foresaw even the possibility to delegate legislative powers to the President for a term not exceeding one year, if approved by a two-thirds vote of each chamber of Parliament.140 Also, the President could issue a decree having the force of law in the case if he would declare a particular draft law urgent, but the Parliament would fail to consider it within a month from the day of its submission. After the recent constitutional reforms the provisions allowing the delegation of legislative powers to the President and the adoption of decrees having the force of law were repealed. Therefore, the Constitution now provides that the Parliament is the highest representative body of the Republic performing “legislative power”, as opposed to previously mentioned “legislative functions”.141

Nevertheless, the Constitution still puts the President in a superior position vis-à-vis the legislature. Thus, the President may still declare a particular draft law urgent; in this case, the Parliament must consider this draft after the latest changes within two months from the day of its submission.142 Besides, in order to come into effect, a law must be signed by the President; if the President refuses to sign the act, the Parliament may theoretically overrule his veto only by confirming the draft with a two-thirds majority in both chambers,143 which is in the context of Kazakhstan’s political realities virtually impossible. Furthermore, the President is entitled at his own discretion to dissolve either the entire Parliament or only its lower chamber, the Mazhilis.144 In doing so, the President is merely required to conduct consultations with the Chairpersons of the Parliament’s chambers and the Prime Minister before taking decision on the dissolution of the Parliament.145

Theoretically, the Parliament may also terminate the President’s authorities, but only in the case of high treason and following an extremely complicated procedure requiring the following steps: the approval of the indictment by a three-fourths majority of the total number of deputies of each chamber, the positive conclusions of the Supreme Court and the Constitutional Council with regard to the factual and legal basis of the charges, the adoption of the decision within two months from the moment of the accusation, and, should the impeachment process fail, the termination of the powers of the deputies who initiated the consideration of this issue; all of which makes the impeachment process practically unattainable.146

6.3 Parliament and the Government

The current version of the Constitution stipulates that the Government “in its entire activity” is responsible not only to the President, but also before the Parliament;147 and that the Prime Minister must report about the main directions of the Government’s activity and all its important decisions not only to the President but also to the Parliament.148 Reflecting the increased participation of the Parliament in the formation of the Government, the recent amendments require the Government to resign its powers to the newly elected Parliament (not as previously to the newly elected President).149 This change is, however, rather of symbolic character, as the dominant role in the formation of the Government is still played by the President.

Already after the constitutional amendments of 21 May 2007, the Parliament could exercise some influence on the composition of the Government. The recent changes modified but hardly strengthened this competence. Thus, following parliamentary hearings by the members of the Government (which may be initiated by one-third of the deputies of each chamber), both the Mazhilis and the Senate are entitled to adopt an appeal to the President to discharge a member of the Government from office due to his nonobservance of the laws of the Republic. According to the previous wording, deputies of both parliamentary chambers were able to appeal to the President by a majority of votes; however, the President could refuse the appeal and, only if the deputies would raise the same issue on expiration of six months from the first appeal, the President had to release that member of the Government from office. The current constitutional text says that deputies of both Parliament’s chambers may appeal only by a two-thirds majority of votes; should this happen, however, the President must release that member of the Government from office.150

Of particular note is that the Government, which often acts as an agent of the President, has significant capacities to intervene into the legislative process. Thus, in the case when a draft of a law submitted by the Government is not adopted, the Prime Minister may, up to twice a year, raise an issue of no confidence in the Government. If the call for a vote of no confidence does not receive a majority of votes in each of the Chambers, the draft of the law is deemed adopted without voting.151 Issuing a vote of no confidence by the Parliament means, however, only that the Government must submit its resignation to the President, who as the arbiter ensuring concerted functioning of all branches of state power, may accept or decline it; and the latter case makes the Parliament’s dissolution very likely. The weak position of the Parliament is made obvious also by the provision stipulating that all drafts envisioning a reduction of state revenues or an increase in expenditures may only be submitted with the approval of the Government, except for those drafts, which are initiated by the President.152

7 Conclusion

The current Constitution of Kazakhstan was adopted in a process of unprecedented fundamental transformation that included, on the one hand, renouncing a communist political system and a state-managed economy, and, on other hand, the restoration of national statehood. Reflecting numerous acute challenges faced by the country and the vision of its major architect of how to address those challenges, the Constitution established a highly centralized political system, which concentrates power and decision-making in a single person. In this regard, the words of Otto Luchterhandt are very telling:

The Constitution of Kazakhstan is … ‘Nazarbayev’s Constitution’. Its construction reflects … a firm conviction of a politician, who, under the complicated circumstances of the transition of his state … sees himself as the only guarantor for the success of this venture and experiment … [and] does pursue an authoritarian … mode of government with the aim of economic and administrative modernization under unconditional safeguarding of political stability.153

Indeed, despite assumptions that Kazakhstan may slide toward economic and political chaos and even military conflicts comparable to those in Bosnia,154 the country remained united and started developing a cohesive multinational identity. Kazakhstan has stable relationships with all members of the international community and has enjoyed significant economic growth since the start of the new millennium, thanks to its market-oriented reforms and the strong energy sector. The current objectives pursued by the country include diversifying the economy away from overdependence on natural resources and becoming one of 30 most competitive countries in the world.155

On the reverse side, however, it is obvious that the excessive concentration of political power in the presidency entails the weakness and fragility of the legislature and other political institutions, results in the lack of development of a strong civil society, and consequently stalls efforts at the country’s modernization and sustainable economic growth. Addressing legitimate concerns of Kazakhstan’s people, President Nazarbayev initiated changes to the Constitution with the proclaimed goal of democratization of Kazakhstan’s political system.156 Yet the constitutional amendments did not take any meaningful steps to improve Kazakhstan’s dismaying human rights record,157 rather they reinforced already vigorous limitations.

Another announced goal of the constitutional reform was the redistribution of powers between the President, the Parliament and the Government. However, the powers the President was willing to transfer to or share with the Parliament and the Government are mostly insignificant (in some cases even of “cosmetic nature”); accordingly, the President remains an absolutely dominating figure in the state machinery and overcentralization of political power continues to be a major feature of Kazakhstan’s political system.

It is also obvious that democratization is required to prepare the ground for a political succession in Kazakhstan, currently the only former Soviet republic still run by a leader from the communist era. Yet the recent constitutional reforms only strengthened the existing fundamentals of Kazakhstan’s constitutional system based on a personality-driven regime, strong central power and limited political freedoms. Accordingly, there is every reason to argue that those reforms do not constitute a move towards the country’s democratic transition and the country’s political leadership will continue banning genuine opposition, constraining the legislature and other political institutions, and treating elections as managed ceremonies to legitimize its reign or the reign of the successors designated by it.

1

See Konstitutsiia Respubliki Kazakhstan (30 August 1995), available at <http://online.zakon.kz/Document/?doc_id=1005029> (hereinafter “Constitution of Kazakhstan” or “Constitution”). Unless otherwise noted, all translations from Russian and German into English in this work are by the author of the present article.

2

“Kazakhstan mozhet vnesti izmeneniia v Konstitutsiiu”, Sputnik International (15 December 2016), available at <https://ru.sputniknews.kz/politics/20161215/1218211/kazahstan-mozhet-vnesti-izmeneniya-v-konstituciyu.html>.

3

See Rasporiazhenie Prezidenta Respubliki Kazakhstan “O vsenarodnom obsuzhdenii proekta Zakona Respubliki Kazakhstan o vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (25 January 2017) No.141, available at <http://www.kazpravda.kz/fresh/view/rasporyazhenie-prezidenta-respubliki-kazahstan3>.

4

“Kazakh President Nazarbayev plans to give certain powers to parliament” (25 January 2017), available at <http://www.dw.com/en/kazakh-president-nazarbayev-plans-to-give-certain-powers-to-parliament/a-37274430>.

5

See “Kazakhstan: Profile”, available at <https://freedomhouse.org/report/freedom-world/2017/kazakhstan>.

6

See “Democracy Index 2016”, available at <http://www.eiu.com/topic/democracy-index>.

7

See Konstitutsiia Respubliki Kazakhstan (28 January 1993), available at <https://online.zakon.kz/Document/?doc_id=1010212#pos=0;147> (ceased to be in force, hereinafter “Constitution of 1993”). See an English translation in Rett R. Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance (Duke University Press, Durham, 1996), 443ff.

8

As a result, however, tensions flared between Nazarbayev and the legislature over the pace of market-oriented reforms, the scope of privatization and also the timeframe of the relocation of the Kazakh capital (see infra Section 3). Those tensions led to the dissolutions of the Parliament in December 1993 and March 1995 and eventually to the adoption of the new Constitution by all-nation referendum on 30 August 1995. See, e.g., Zhenis Kembayev, “The Rise of Presidentialism in Post-Soviet Central Asia: The Example of Kazakhstan”, in Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford University Press, New York, 2011), 438.

9

Constitution of Kazakhstan, op.cit. note 1, Art.40(2).

10

Ibid., Arts.53(1), 91(1).

11

Ibid., Art.62(3).

12

Ibid., Arts.44(10), 91(1).

13

See Zakon Respubliki Kazakhstan “O vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (7 October 1998) No.284-i, available at <http://online.zakon.kz/Document/?doc_id=1010769#pos=0;151> (hereinafter “Constitutional Amendment Law of 1998”).

14

See Zakon Respubliki Kazakhstan “O vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (21 May 2007) No.254-iii, available at <http://online.zakon.kz/Document/?doc_id=30103613#pos=0;0> (hereinafter “Constitutional Amendment Law of 2007”).

15

See Zakon Respubliki Kazakhstan “O vnesenii dopolneniia v Konstitutsiiu Respubliki Kazakhstan” (2 February 2011) No.403-iv, available at <http://online.zakon.kz/Document/?doc_id=30925295> (hereinafter “Constitutional Amendment Law of 2011”).

16

See “Constitutional reforms bill introduced to Parliament, passes first reading”, Astana Times (4 March 2017), available at <http://astanatimes.com/2017/03/constitutional-reforms-bill-introduced-to-parliament-passes-first-reading>.

17

These modifications did not aim, however, at the country’s further democratization but mostly at limitation of individual rights and freedoms. In particular, they included additions, changes (or non-changes) in Art.2(3–1) (cf. infra note 52), Art.10(2) (cf. infra note 65), Art.26(1) (cf. infra note 69), and Art.39(2) (cf. infra note 60).

18

Cf. infra Section 5.4.

19

See Normativnoe postanovlenie Konstitutsionnogo Soveta Respubliki Kazakhstan “O proverke Zakona Respubliki Kazakhstan o vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan na sootvetstvie Konstitutsii Respubliki Kazakhstan” (9 March 2017) No.1, available at <http://online.zakon.kz/Document/?doc_id=36772838#pos=0;0>.

20

See Zakon Respubliki Kazakhstan “O vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (10 March 2017) No.51-vi, available at <http://online.zakon.kz/Document/?doc_id=32937557#pos=0;0>.

21

Constitution of Kazakhstan, op.cit. note 1, Art.1(1).

22

Ibid., Art.1(2).

23

See “Nazarbayev: Economy First, Then Politics” (15 January 2010), available at <http://www.euronews.com/2010/01/15/nazarbayev-economy-first-then-politics>. In this respect, there are, however, divergent views. Thus, the chairperson of Kazakhstan’s Constitutional Council, Igor Rogov, believes that Nazarbayev’s vision “gave a powerful impetus to the formation of socially oriented market economy in the country… [it] allowed to solve the main tasks of the transition period, namely establishing Kazakhstan as a new subject of international relations within the legal framework… [and] avoiding armed or any other mass clashes and conflicts”. See Igor’ Rogov, “Konstitutsiia Kazakhstana – osnova postupatel’nogo razvitiia obshhestva i gosudarstva”, Pravo i gosudarstvo (2015) No.3, 6–11, at 6–7. Yet a different opinion says: “When Nazarbayev speaks of a gradual transition to democracy, this appears to be a purely ‘instrumental’ (if not demagogic) statement by someone who does not want to surrender or share power”. See Dmitrii Furman, “The Regime in Kazakhstan”, in Boris Rumer (ed.), Central Asia at the End of the Transition (Routledge, Abingdon, New York, 2015), 241.

24

Constitution of Kazakhstan, op.cit. note 1, Art.2(1).

25

Ibid.

26

Ibid., Art.91(2). It is also quite revealing that while announcing changes to the Constitution, President Nazarbayev unambiguously emphasized that: “Kazakhstan was, is, and will be a state with presidential system of governance”. See supra notes 2 and 15.

27

Cf. infra Section 5.

28

As a unitary state, Kazakhstan is composed of the following 16 first-level administrative-territorial units with fully unified legal regimes: (a) 14 regions (oblasts); (b) Astana, the capital of Kazakhstan; and (c) Almaty, a city with special “republican” status. These first-level units are subdivided into 177 districts (rayons), which may consist of tertiary-level units. All three levels are run by local executive bodies headed by Akims, while local representative bodies (Maslikhats) operate in all first- and second-level units. The President appoints Akims of the first-level administrative units with the consent of the respective Maslikhat and determines the procedure of appointment or election of Akims of lower-level administrative units. See Constitution of Kazakhstan, op.cit. note 1, Art.87(4). In addition, the President may release any Akim from office at his own discretion and dissolve any Maslikhat after consultations with the Prime-Minister and the Chairpersons of the Chambers of the Parliament. See Constitution of Kazakhstan, op.cit. note 1, Arts.86(5), 87(4).

29

See Alikhan Smailov (ed.), Perepis’ naseleniia Respubliki Kazakhstan 2009 goda. Kratkie ­itogi (Agentstvo Respubliki Kazakhstan po statistike, Astana, 2010), 10, available at <http://stat.gov.kz/faces/wcnav_externalId/p_perepis?_afrLoop=23357519289092241#%40%3F_afrLoop%3D23357519289092241%26_adf.ctrl-state%3D7f39glmk3_30>.

30

Ibid., 81.

31

Constitution of Kazakhstan, op.cit. note 1, Art.7.

32

Ibid., Art.91(2).

33

Ibid., Art.91(3).

34

See, e.g., Zhenis Kembayev, “Constitutional Order of Kazakhstan and its Adaptability to the Eurasian Economic Union”, in Roman Petrov and Peter Van Elsuwege (eds.), ­Post-Soviet Constitutions and Challenges of Regional Integration: Adapting to European and Eurasian Integration Projects (Routledge, Abingdon, New York, 2018) [forthcoming].

35

See, e.g., Zhenis Kembayev, “Regional Integration in Eurasia: The Legal and Political Framework”, 41(2) Review of Central and East European Law (2016), 157–194, at 186–187.

36

See Zakon Respubliki Kazakhstan “O mezhdunarodnykh dogovorakh Respubliki Kazakhstan” (30 May 2005) No.54-iii, Art.11(5), available at <https://online.zakon.kz/Document/?doc_id=30012948>.

37

Postanovlenie Verkhovnogo Suda Respubliki Kazakhstan “O primenenii norm mezhdunarodnykh dogovorov Respubliki Kazakhstan” (10 July 2008) No.1, available at <https://egov.kz/cms/ru/law/list/P08000001S_>.

38

See Postanovlenie Konstitutsionnogo Soveta Respubliki Kazakhstan “Ob ofitsial’nom tolkovanii norm Konstitutsii Respubliki Kazakhstan” (5 November 2009) No.6, available at <http://www.ksrk.gov.kz/rus/resheniya?cid=11&rid=533>.

39

Ibid.

40

Constitution of Kazakhstan, op.cit. note 1, Art.91(2). Cf. infra Section 5.2.

41

Aleksandr Solzhenitsyn, “Kak nam obustroit’ Rossiu”, Komsomol’skaia Pravda (18 September 1990), available at <http://www.lib.ru/PROZA/SOLZHENICYN/s_kak_1990.txt>.

42

Nursultan Nazarbaev, v serdtse Evrazii (Zhibek Zholy, Almaty, 2010), 142, available at <http://personal.akorda.kz/images/file/55580a981f8f90e5430cff4d846d7361.pdf>.

43

Postanovlenie Verkhovnogo Soveta Respubliki Kazakhstan “O perenose stolitsy Respubliki Kazakhstan” (6 July 1994) No.106-xiii, available at <http://online.zakon.kz/Document/?doc_id=1003072>.

44

See “Prichiny perenosa stolitsy Kazakhstana v Astanu ob”yasnil Nazarbaev”, 365info (20 October 2016), available at <https://365info.kz/2016/10/prichiny-perenosa-stolitsy-kazahstana-v-astanu-obyasnil-nazarbaev>.

45

Cf. supra note 8.

46

Constitution of 1993, op.cit. note 7, Bases of the Constitutional System, It.9.

47

Constitution of Kazakhstan, op.cit. note 1, Art.2(3).

48

Ukaz Prezidenta Respubliki Kazakhstan, imeiushchii silu zakona, “O stolitse Respubliki Kazakhstan” (15 September 1995) No.2457, available at <http://online.zakon.kz/Document/?doc_id=1009016>.

49

Ukaz Prezidenta Respubliki Kazakhstan “Ob ob”iavlenii goroda Akmoly stolitsei Respubliki Kazakhstan” (20 October 1997) No.3700, available at <http://online.zakon.kz/Document/?doc_id=1009017>.

50

Ukaz Prezidenta Respubliki Kazakhstan “O pereimenovanii goroda Akmoly – stolitsy Respubliki Kazakhstan v gorod Astana – stolitsu Respubliki Kazakhstan” (6 May 1998), available at <http://online.zakon.kz/Document/?doc_id=1009627>.

51

Constitution of Kazakhstan, op.cit. note 1, Art.2(3).

52

Ibid., Art.2(3–1).

53

See Ukaz Prezidenta RK “O mezhdunarodnom finansovom tsentre Astana” (19 May 2015) No.24, available at <http://online.zakon.kz/Document/?doc_id=34204333#pos=1;-128>.

54

See Konstitutsionnyi zakon Respubliki Kazakhstan “O Mezhdunarodnom finansovom tsentre Astana” (7 December 2015) No.438-v, available at <http://online.zakon.kz/Document/?doc_id=39635390#pos=2;-295>.

55

Kazakhstan is currently classified as “highly corrupt” ranking 131 among 176 countries in 2016. See “Corruption Perceptions Index 2016”, available at <http://www.transparency.org/news/feature/corruption_perceptions_index_2016>.

56

See, e.g., Zhenis Kembayev, “Probleme der richterlichen Unabhängigkeit in Kasachstan”, 63(1) Osteuropa-Recht (2017), 41–48.

57

Constitution of 1993, op.cit. note 7, Art.2.

58

Constitution of Kazakhstan, op.cit. note 1, Art.12(5).

59

Ibid., Art.39(1). Yet the Constitution also provides that “any form of restrictions to the rights and freedoms of the citizens on political grounds shall not be permitted” and such rights as to protection and patronage outside the boundaries of Kazakhstan, to protection of rights and freedoms with all means not contradicting the law, to equality, to life, to ­personal freedom, to dignity, to use native language and culture, to freedom of conscience, and to property may not be limited in any event. Ibid., Art.39(3).

60

Ibid., Art.39(2). In this context, the following opinion is worth noting: “The government of Kazakhstan seems to have chosen the Soviet notion of ‘one big family’ living in peace and friendship as its ‘safe choice’ for identity politics, where the Kazakhs take the role of the ‘older brother’ – as the Russians did during the Soviet era… In terms of identity-building, Kazakhstan has not developed a new identity policy and still relies on the Soviet approach”. See Aziz Burkhanov, “Kazakhstan’s National Identity – Building Policy: Soviet Legacy, State Efforts, and Societal Reactions”, 50 Cornell International Law Journal (2017), 13–14.

61

Cf. infra Section 5.4.

62

The Constitution provides now that the ombudsman is appointed by the Senate (the upper chamber of Kazakhstan’s Parliament) for a five-year term at the proposal of the President. Ibid., Art.55(1–1).

63

Ukaz Prezidenta Respubliki Kazakhstan “Ob uchrezhdenii dolzhnosti upolnomochennogo po pravam cheloveka” (19 September 2002) No.947, Par.18, available at <https://egov.kz/cms/ru/law/list/U020000947_>.

64

To be noted that almost immediately after the collapse of the ussr, Kazakhstan adopted a liberal law on the citizenship, which declared eligible for citizenship all people who had been permanently residing in the territory of the country at the moment the law came into effect. See Zakon Respubliki Kazakhstan “O grazhdanstve Respubliki Kazakhstan” (20 December 1991) No.1017-xii, Art.3, available at <https://online.zakon.kz/Document/?doc_id=1000816#pos=67;-195>.

65

Constitution of 1993, op.cit. note 7, Art.10(2).

67

Ukaz Prezidenta Respubliki Kazakhstan “Ob utverzhdenii Voennoi doktriny Respubliki Kazakhstan” (10 February 2000) No.334, available at <https://egov.kz/cms/ru/law/list/U000000334_> (ceased to be in force).

68

“Baimoldina: Poniatie ‘zhiznenno vazhnye interesy rk’ v uk seichas otsutstvuet” (28 March 2017), available at <https://www.zakon.kz/4850790-bajjmoldina-ponjatie-zhiznenno-vazhnye.html>.

69

Constitution of Kazakhstan, op.cit. note 1, Art.26(1).

70

See “Kazakhstanu za gody Nezavisimosti udalos’ zavoevat’ doverie investorov – Bishimbaev”, Tengri News (17 November 2016), available at <https://tengrinews.kz/kazakhstan_news/kazahstanu-godyi-nezavisimosti-udalos-zavoevat-doverie-306322>.

71

In December 2009, President Nazarbayev said that Kazakhstan would consider allocating one million hectares of Kazakh land for cultivating agricultural products by Chinese companies. This prompted two days of public protests in Almaty, a highly unusual move in a country where political dissent hardly exists. See Bruce Pannier, “Central Asian Land and China”, rfe/rl (2 May 2016), available at <http://www.rferl.org/a/central-asian-land-and-china/27711366.html>. In April 2016, large numbers of people protested over proposed land reforms allowing foreigners to rent agricultural land in Kazakhstan for 25 years. Their major fear was again that Chinese investors would eventually buy out their land. See “Kazakhstan’s Land Reform Protests Explained”, bbc News (28 April 2016), available at <http://www.bbc.com/news/world-asia-36163103>. As a result, the respective legislation was suspended for five years.

72

Yet the Constitution also stipulates that “foreigners and stateless persons in the Republic shall enjoy rights and freedoms as well as bear responsibilities established for the citizens unless otherwise stipulated by the Constitution, laws and international treaties”. Constitution of Kazakhstan, op.cit. note 1, Art.12(4). There are only few exceptions from the principle of equality between citizens of Kazakhstan and foreigners, with the prohibition for foreigners to own agricultural land being one of them.

73

Cf. supra note 8. See also Levent Gönenç, Prospects for Constitutionalism in ­Post-Communist Countries (Martinus Nijhoff, The Hague, New York, 2002), 193ff.

74

Constitutional Amendment Law of 1998, op.cit. note 13, Art.2.

75

The elections were, however, characterized as “badly flawed, even by the dismal standards of post-Soviet republics”. See Phil Reeves, “Kazakh election ‘grossly unfair’”, The Independent (12 January 1999), available at <http://www.independent.co.uk/news/kazakh-election-grossly-unfair-1046570.html>.

76

Constitution of Kazakhstan, op.cit. note 1, Art.26(1).

77

See Postanovlenie Konstitutsionnogo Soveta Respubliki Kazakhstan “Ob ofitsial’nom tolkovanii punkta 5 stat’i 42 Konstitutsii Respubliki Kazakhstan” (20 June 2000) No.12/2, available at <http://www.ksrk.gov.kz/rus/resheniya?cid=11&rid=146>.

78

According to osce Office for Democratic Institutions and Human Rights, “a number of significant shortcomings [such as undue involvement of the authorities in the election campaign, undue restrictions on campaigning, cases of harassment of campaign staff and an atmosphere of intimidation] during the election campaign limited the possibility for a meaningful competition whereby all candidates could enjoy equal opportunities to convey their views to the electorate. See “Republic of Kazakhstan Presidential Election 4 December 2005. osce/odihr Election Observation Mission Final Report” (21 February 2006), 1, available at <http://www.osce.org/odihr/elections/kazakhstan/18153?download=true>.

79

Constitution of Kazakhstan, op.cit. note 1, Art.41(3).

80

Constitutional Amendment Law of 2007, op.cit. note 14, Art.1(8).

81

Ibid., Art.1(7).

82

See “Kazakh president calls early vote, rejects referendum” (31 January 2011), available at <http://www.dw.com/en/kazakh-president-calls-early-vote-rejects-referendum/a-14806303>.

83

Constitutional Amendment Law of 2011, op.cit. note 15, Art.1.

84

“[T]his election revealed shortcomings similar to those in previous elections. While the election was technically well-administered, the absence of opposition candidates and of a vibrant political discourse resulted in a non-competitive environment”. See Republic of Kazakhstan Early Presidential Election 3 April 2011. osce/odihr Election Observation Mission Final Report. (16 June 2011), 1, available at <http://www.osce.org/odihr/elections/78714?download=true>.

85

“The [election]campaign was largely indiscernible, lacked competitiveness and appeared to generate negligible public interest… Voters were not offered a genuine choice between political alternatives. The two opponents to the incumbent openly praised the President’s achievements”. See Republic of Kazakhstan Early Presidential Election 26 April 2015. osce/odihr Election Observation Mission Final Report. (29 July 2015), 2, available at <http://www.osce.org/odihr/elections/kazakhstan/174811?download=true>.

86

See “Polls open in Kazakhstan as voters widely expected to reconfirm Nazarbayev” (26 April 2015), available at <http://www.dw.com/en/polls-open-in-kazakhstan-as-voters-widely-expected-to-reconfirm-nazarbayev/a-18409096>.

87

Constitution of Kazakhstan, op.cit. note 1, Art.41(2).

88

Ibid.

89

Konstitutsionnyi zakon Respubliki Kazakhstan “O vyborakh v Respublike Kazakhstan” (28 September 1995) No.2464, available at <https://online.zakon.kz/Document/?doc_id=1004068#pos=0;0>.

90

“Kandidatam v prezidenty Kazakhstana pridetsia dokazyvat’, chto oni zdorovy”, Sputnik Kazakhstan (4 May 2017), available at <https://ru.sputniknews.kz/society/20170504/2170803/kandidatam-v-prezidenty-kazahstana-pridetsya-dokazyvat-chto-oni-zdorovy.html>.

91

Constitution of Kazakhstan, op.cit. note 1, Art.40(1).

92

Ibid. In this regard, it is noteworthy that Kazakhstan conducts “a pragmatic, non-confrontational foreign policy which aims to balance positive relations with the major powers (Russia, China, the United States), as well as to ensure an active policy in the regions surrounding Kazakhstan (Eurasia, Europe, Asia, and the Islamic world)”. See Thomas Ambrosio and William A. Lange, ‘Mapping Kazakhstan’s geopolitical code: an analysis of Nazarbayev’s presidential addresses, 1997–2014’, 55 Eurasian Geography and Economics (2015), 549. This is particularly important, as Kazakhstan faces challenges related not only to weak internal coherence (as showed when discussing the reasons for the relocation of the country’s capital) but also potentially powerful outside threats. See, e.g., Sherman W. Garnett, “The Strategic Challenge of Kazakhstan and Inner Asia”, in Robert Legvold (ed.), Thinking Strategically: The Major Powers, Kazakhstan, and the Central Asian Nexus (mit Press, Cambridge, Mass., 2003), 220ff.

93

Constitution of Kazakhstan, op.cit. note 1, Art.40(2).

94

Ibid., Art.40(3).

95

Ibid., Arts.63(1), 70(7). In this respect, there is a view that “the President is effectively ­established as meta-branch of government, elevated above all other state bodies, legislative, judicial and executive”. Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis (Hart Publishing, Oxford and Portland, 2017), 149. Yet, according to an opinion of one of the members of Kazakhstan’s Constitutional Council, the country “must be led by a creative and responsible leader, who directs the entire power of the state apparatus and institutions of civil society to ensure constitutional values and to put constitutional norms into practice”. See Viktor Malinovskii, “­Konstitutsiia Respubliki Kazakhstan – pravovoi fundament novoi epokhi”, Pravo i gosudarstvo (2015) No.3, 25–31, at 26.

96

Constitution of Kazakhstan, op.cit. note 1, Art.40(2). Cf. supra Section 1.

97

Ibid., Arts.46(1), 47(2).

98

Ibid., Art.44(10–1). A prominent Kazakhstani scholar, Sergei Udartsev, argues that the recent constitutional reform “started the formation of a new model of an effective state… [which] is based on strong presidential power but at the same time gradually “cultivates” other components, the Parliament, the Government, and local state bodies, raises their responsibility, and expands opportunities for their proactive attitude”. See Put’ modernizatsionnogo razvitiia, Kazakhstanskaia pravda (30 August 2017), available at <http://www.kazpravda.kz/articles/view/put-modernizatsionnogo-razvitiya>.

99

As a representative body, composed of delegates of ethno-cultural and other public associations, state officials and prominent individuals as endorsed by the President, the Assembly of the People of Kazakhstan was created in March 1995 on the eve of the Parliament’s dissolution (see supra note). The Assembly’s first resolution was to initiate conducting a referendum extending the President’s term until 2000. As the First President of the country, Nazarbayev is entitled to be the lifelong Chair of the Assembly. The functions of Assembly include, in particular, developing recommendations on preventing any conflicts between different ethnic and religious groups. See Zakon Respubliki Kazakhstan “Ob Assamblee naroda Kazakhstana” (20 October 2008) No.70-iv, available at <https://online.zakon.kz/Document/?doc_id=1019103#pos=15;-159>.

100

All ex-Presidents of the Republic have the right to be lifelong members of the Constitutional Council. See Constitution of Kazakhstan, op.cit. note 1, Art.71.

101

The Security Council is a consultative body, whose permanent membership includes the Prime Minister, the Head of the Presidential Administration, the Chairman of the National Security Committee, the Minister of Foreign Affairs, the Minister of Defense, and the Secretary of the Security Council. The main functions of this organ consist of analyzing issues of national security and submitting corresponding proposals and recommendations to the President. See Ukaz Prezidenta Respubliki Kazakhstan “O Sovete Bezopasnosti Respubliki Kazakhstan” (20 March 1999) No.88, available at <https://online.zakon.kz/Document/?doc_id=1012707>.

102

See Konstitutsionnyi zakon Respubliki Kazakhstan “O Pervom Prezidente Respubliki ­Kazakhstan – Lidere Natsii” (20 July 2000) No.83-ii, available at <https://online.zakon.kz/Document/?doc_id=1019103>. Although the President refused to sign the draft law granting him the title of the Leader of the Nation in an open letter to the nation, Nazarbayev did not return the draft law to the Parliament (i.e. he did not formally use his right of veto). According to the Kazakhstani legislation, since the legislative act was neither signed nor vetoed by the President, it entered into force without the President’s signature one month after its submission. See Konstitutsionnyi zakon Respubliki Kazakhstan “O Parlamente Respubliki Kazakhstan i statuse ego deputatov” (16 October 1995) No.2529, Art.19(2,3), available at <https://online.zakon.kz/Document/?doc_id=1003961>.

103

Ibid., Art.3.

104

Ibid., Art.1.

105

Constitution of Kazakhstan, op.cit. note 1, Art.64(1).

106

Ibid., Art.64(2).

107

Ibid., Art.44(3).

108

Ibid., Art.68(1).

109

Ibid., Art.65(3).

110

Ibid., Art.65(1).

111

Ibid., Art.44(3).

112

Ibid.

113

Ibid., Art.66(1).

114

Ibid., Art.66(9–1).

115

Ibid., Art.72(1).

116

Zakon Respubliki Kazakhstan “O pravovykh aktakh” (6 April 2016) No.480-v, Art.5(2), ­available at <https://online.zakon.kz/Document/?doc_id=37312788#pos=166;-206>, (hereinafter “Law on Regulatory Acts”).

117

Ibid., Art.5(1).

118

See Constitution of Kazakhstan, op.cit. note 1, Art.72(1). In addition, the Constitutional Council may also be appealed to by Kazakhstani courts but only in cases where they find that a law or other regulatory legal act subject to application infringes on the rights and freedoms of individuals. Ibid., Art.78.

119

Ibid., Art.82(1,2). The Highest Judicial Court is an “autonomous state institution” that consists of a chairperson, ex officio, and other members, who are all appointed by the President. Its ex officio members are the Chairperson of the Supreme Court, the Procurator General, the Minister of Justice, the head of the authorized body on state service and anti-corruption, heads of respective permanent committees of both chambers of the Parliament. See Zakon Respubliki Kazakhstan “O Vysshem Sudebnom Sovete Respubliki Kazakhstan” (4 December 2015) No.436-v, Art.4(1), available at <http://online.zakon.kz/Document/?doc_id=34433079#pos=107;-175>.

120

Konstitutsionnyi zakon Respubliki Kazakhstan “O sudebnoi sisteme i statuse sudei Respubliki Kazakhstan” (25 December 2000) No.132-ii, Art.34–1(2), available at <https://online.zakon.kz/Document/?doc_id=1021164#pos=0;0>, (hereinafter “Constitutional Law on Judicial System and Status of Judges”).

121

See Kembayev, op.cit. note 56, 45 ff.

122

See Constitutional Law on Judicial System and Status of Judges, op.cit. note 120, Arts.6(1), 10(1).

123

Constitution of Kazakhstan, op.cit. note 1, Art.4(1); Law on Regulatory Acts, op.cit. note 116, Art.7(1).

124

Although of the Supreme Court of Kazakhstan may adopt regulatory resolutions, those resolutions are mandatory only to lower courts of the Republic and contain “explanations on the issues of how to apply legislation” in judicial practice. See Postanovlenie Konstitutsionnogo Soveta Respubliki Kazakhstan “Ob ofitsial’nom tolkovanii punkta 1 stat’i 4 Konstitutsii Respubliki Kazakhstan” (6 March 1997) No.3, available at <http://www.ksrk.gov.kz/rus/resheniya?cid=11&rid=166>. The resolutions of the Supreme Court are issued on the basis of review of the lower courts’ practice on certain type of matters rather than with respect to a single case, i.e. they follow the jurisprudence constante rather than the stare decisis principle. Thus, they are not binding precedents as in the sense of common law.

125

Ibid., Art.50(3).

126

Constitutional Amendment Law of 1998, op.cit. note 13, Art.7.

127

See osce, Republic of Kazakhstan Parliamentary Elections 10 and 24 October 1999 Final Report (20 January 2000), 28, available at <http://www.osce.org/odihr/elections/kazakhstan/14790?download=true>.

128

Ibid.

129

osce, Republic of Kazakhstan Parliamentary Elections 19 September and 3 October 2004 osce/odihr Election Observation Mission Report (15 December 2004), 24, available at <http://www.osce.org/odihr/elections/kazakhstan/38916?download= true>.

130

See “Pro-Nazarbaev Party Merges With President’s Power Base”, Radio Free Europe/Radio Liberty (10 November 2006), available at <https://www.rferl.org/a/1072644.html>.

131

There is a view that Nur-Otan party is “the culmination of the President’s long standing attempts to possess a political party that could represent his interests in the legislature, unite the country’s elite behind his leadership, formally contextualizing some aspects of his informal power, and through which to dominate the state apparatus”. See Rico Isaacs, Party System Formation in Kazakhstan: Between Formal and Informal Politics (Routledge, Abingdon, New York, 2011), 82.

132

Constitution of Kazakhstan, op.cit. note 1, Art.51(1).

133

Constitutional Amendment Law of 2007, op.cit. note 14, Art.1(9).

134

Ibid., Art.1(15).

135

Republic of Kazakhstan Parliamentary Elections 18 August 2007 osce/odihr Election Observation Mission Report (30 October 2007), 34, available at <http://www.osce.org/odihr/elections/kazakhstan/28438?download=true>.

136

“Kazakhstan: President Argues That One-Party Parliament Can Be Engine of Modernization” (12 September 2007), available at <http://www.eurasianet.org/departments/insight/articles/eav091307.shtml>.

137

osce, Republic of Kazakhstan Early Parliamentary Elections 15 January 2012, Final Report (3 April 2012), 38, available at <http://www.osce.org/odihr/elections/89401?download=true>.

138

osce, Republic of Kazakhstan Early Parliamentary Elections 20 March 2016, Final Report (27 June 2016), 36, available at <http://www.osce.org/odihr/elections/kazakhstan/248781?download=true>.

139

In literature, Nur-Otan is defined as a “hegemonic” party, which is not an independent political force but rather an instrument of Nazarbayev’s will extending his individual power and contributing to the marginalization of genuine opposition. See Max Bader, ‘Hegemonic political parties in post-Soviet Eurasia’, 44 Communist & Post-Communist Studies (2011), 191, 193. Of particular note is also an opinion that the formation procedure of Kazakhstan’s Central Election Commission, the superior body responsible for conducting and overseeing elections (whose chairperson and two members are appointed by the President, two members by the Senate and two members by the Mazhilis at the proposal of the respective chamber’s chairperson), “does not indicate the political neutrality of this state body” and “allows the party of power to control the electoral process indefinitely”. See See Eduard Mukhamedzhanov, “Kazakhstan: shag k evropeiskoi demokratii?”, Sovremennaia Evropa (2011) No.2, 26–36, at 36.

140

Constitution of Kazakhstan, op.cit. note 1, Art.53(3).

141

Ibid., Art.47(1).

142

Ibid., Art.61(2).

143

Ibid., Art.44(2).

144

Ibid., Art.63(1).

145

Ibid. The Parliament or its lower chamber may not be dissolved only in the period of a state of emergency or martial law, during the last six months of the President’s term, as well as within a year after a previous dissolution. Ibid., Art.63(2).

146

Ibid., Art.47.

147

Ibid., Art.64(2).

148

Ibid., Art.67(4).

149

Ibid., Art.70(1).

150

Ibid., Art.57(6).

151

Ibid., Art.61(7).

152

Ibid., Art.61(6).

153

See Otto Luchterhandt, “Die Verfassung der Republik Kasachstan von 1995”, 47 Jahrbuch des Öffentlichen Rechts (1999), 633.

154

See numerous proofs in Beate Eschment, Hat Kasachstan ein russisches Problem? (biost, Cologne, 1998). See also Zbigniew Brzezinski, The Grand Chessboard: American Primacy and Its Geostrategic Imperatives (BasicBooks, New York, 1997), 93–95.

155

See “Strategiia ‘Kazakhstan-2050’”, available at <https://strategy2050.kz/en/news/5142/>.

156

See supra note 4.

157

See, e.g., “Kazakhstan: Events of 2016”, Human Rights Watch, available at <https://www.hrw.org/world-report/2017/country-chapters/kazakhstan>. Cf. also supra notes 5, 6.

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